MR. ABIODUN RUFAI v. ARIK AIR LIMITED (2019)

MR. ABIODUN RUFAI v. ARIK AIR LIMITED

(2019)LCN/13531(CA)

In The Court of Appeal of Nigeria

On Friday, the 21st day of June, 2019

CA/L/472/2012

RATIO

AVIATION LAW: THE PROVISION OF THE LAW AS REGARDS LIABILITY OF THE CARRIER IN A CONTRACT OF AIR CARRIAGE

The relevant provisions of the Aviation Act in relation to liability of the carrier in a contract of air carriage, referred to and relied on by the parties are Section 48(1), (2) (3) as well as Articles 19 and 22(1) which provide that: –
(1) The provisions contained in the Convention for the Unification of certain rules relating to International Carriage by Air signed at Montreal on 28th May, 1999 set out in the Second Schedule 11 of this Act and as amended from time to time, shall from the commencement of this Act have force of law and apply to international carriage by air to and from Nigeria, in relation to any carriage by air to which those rules apply, irrespective of the nationality of the aircraft performing the carriage, and shall, subject to the provisions of this Act, govern the rights and liabilities of carriers, passengers, consignors, consignees and other persons.
(2) The provisions contained in the Convention for the Unification of Certain Rules Relating to International Carriage by Air signed at Montreal on 28th May, 1999 as has been modified and set out in the Third Schedule of this Act and as amended from time to time, shall from commencement of this Act have force of law and apply to non-international carriage by air within Nigeria, irrespective of the materiality of the aircraft performing the carriage, and shall, subject to the provisions of this Act, govern the rights and liabilities of carriers, passengers, consignors, consignees and other persons.
(3) In any case of aircraft accident resulting in death or injury of passengers, the carrier shall make advance payments of at least US $30,000 (thirty thousand United States Dollars) within 30 (thirty) days days from the date of such accident, to the natural person or such natural persons who are entitled to claim compensation in order to meet the immediate economic needs of such persons and such advance payment shall not constitute recognition of liability and may be off set against any amounts subsequently paid as damages by the carrier.
Article 19
The carrier is liable for damages occasioned by delay in the carriage by air of passengers, baggage or cargo. Never the less, the carrier shall not be liable for damage occasioned by delay if it proves that it and its servants and agents took all measure that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measure.
Article 22 of the Schedule III
In the case of damages caused by delay as specified in Article 19 in the carriage of persons, the liability of the carrier for each passenger is limited to 4,150 special drawing rights.PER MOHAMMED LAWAL GARBA, J.C.A.

HE WHO ASSERTS MUST PROVE

As a foundation, learned Counsel are right that by dint of the provisions of Sections 135, 136 and 137(1) of the Evidence Act, 2004 (Sections 131, 132 and 133(1) of the 2011 Act), the initial evidential burden of proof of the existence of any fact/s alleged or asserted for the claim of a right or obligation in a case, is on the party making the allegation or assertion and claiming the right or obligation as the party who will fail in the claim if no evidence at all was given on either side, regard being heard to any presumption that may arise on the facts UBN, Plc. v. Sparkling Brew Limited (2000) 15 NWLR (689) 200, ED Tsokwa & Sons Company Limited v. UBN, Limited (1996) 10 NWLR (478) 281, Kala v. Potiskum (1998) 3 NWLR (540) 1, Audu v. Guta (2004) 4 NWLR (864) 463, Otaru & Sons Lmited v. Idris (1999) 6 NWLR (606) 330, Itauma v. Akpe-Ime(2000) 7 SC (Pt. II) 24.PER MOHAMMED LAWAL GARBA, J.C.A.

WHEN BURDEN OF PROOF WILL SHIFT

It is also the law that until the initial legal burden of proof was satisfactorily discharged on the balance of the evidence adduced; it does not shift but remains on the party who bears it by the operation of the law. In addition, the burden is to be and can only be satisfactorily discharged by admissible, credible and sufficient evidence which supports and establishes the fact/s upon which the claim/s is/are predicated. See Elias v. Omo-Bare (1982) 5 SC, 25, Kala v. Potiskum (supra), Daodu v. NNPC (1998) 2 NWLR (538) 355, Imam v. Sheriff (2005) 4 NWLR (914) 80, Agbi v. Ogbeh (2006) 11 NWLR (990) 65, George v. UBA (1972) 8-9 SC, 264 (cited in the Appellants brief). Buhari v. Obasanjo (supra), Imana v. Robinson (supra).PER MOHAMMED LAWAL GARBA, J.C.A.

WHERE FACTS ASSERTED BY A PARTY IS ADMITTED BY THE OTHER PARTY
Where facts asserted by one party in a case are expressly or by necessary implications or inference, admitted or conceded to by the other party, then there would be no dispute between the parties on such fact/s which will call for proof and the question of burden of such proof would not arise. The question and requirement of proof pre-supposes the existence a dispute which calls for some evidence in proof. That is the basis of the law that a fact admitted, requires no proof or further proof as provided for in Section 123 of the Evidence Act, 2011 (Section 75 of the 2004 Act). See also Akibu v. Oduntan(1992) 2 NWLR (222) 210 @ 226-7, Obimiami Brick & Stones Limited v. A.C.B. Limited (1992) 3 NWLR (229) 260 @ 301, Nwakanma v. Military Administrator, Abia State (1995) 4 NWLR (388) 185 @ 187, Gabari v. Ilori (2002) 14 NWLR (786) 78 @ 100, Akpana v. Coniran (2004) ALL FWLR (228) 751 @ 787, Owosho v. Dada (1984) 7 SC, 149.PER MOHAMMED LAWAL GARBA, J.C.A.

Justice

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria

Between

Mr. Abiodun Rufai
(Suing for and on behalf of his family Ogunmoyera Naomi, Oluwatobi Rufai, Favour Rufai & Ajepe Idowu)Appellant(s)

AND

ARIK AIR LIMITEDRespondent(s)

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): By the Notice of Appeal dated and filed on the 31st May, 2012, this appeal was brought against the judgement of the Federal High Court sitting in Lagos, which was delivered on 23rd May, 2012, dismissing the Appellants claims of special and general damages against the Respondent for delayed flight from Lagos to Port Harcourt on the 6th August, 2008. The Appellants case was that the said flight was delayed from 7:30am to 8:20am of the same date without any valid reason and caused him to miss his flight to America with Air France from Port Harcourt on the day.

In the Appellants brief filed on the 2nd August, 2012, three (3) issues were distilled from the four (4) grounds of the Notice of Appeal as follows: –
ISSUE 1
Whether having regard to the quality of evidence given by the respondent at the lower Court in support of its allegation that adverse weather was the cause of the delay of the appellants flight from Lagos to Port Harcourt on the 6th August, 2008 it was enough for the learned trial Judge to conclude that the burden of

proof has shifted to the appellant.
ISSUE 2
Whether the appellant is not entitled to damages, considering the totality of the facts and circumstances of this appeal and the admission of the respondent witness at the lower Court, that the respondents aircraft did not take off at 7:30am on the 6th of August, 2008 as agreed upon by parties. And whether the respondent can be excluded from liability for damages as provided for in Article 19 of the 3rd schedule to the 2006 Civil Aviation Act.
ISSUE 3
If the answer to issue 2 mentioned above is negative, whether the appellant was entitled to judgement as per its claims.

Without any indication of the grounds of appeal from which they were derived from, three (3) issues, different from the Appellants issues, were set out in the Respondents brief filed on the 16th January, 2013 in the following terms:-
(A) Whether the Respondent breached any contract of carriage by air agreement with the Appellant.
(B) Whether on the preponderance of evidence, the Respondent is liable to the Appellant in the claims as formulated and endorsed in the Writ of Summons and

Statement of Claim.
(c).Whether interest is contemplated and demandable within the contract of this suit as formulated.

I need to restate the law that a Respondent who has no cross appeal and did not file a Respondents notice for the decision by a Lower Court to be affirmed on grounds and for reasons other than those relied on by it, cannot formulate issues in an appeal outside of and not related to or derivable from the grounds of the Appellants Notice of Appeal. See Eyo v. Okpa (2010) 6 NWLR (1191) 611, Spring Bank, Plc v. Babatunde (2012) 5 NWLR (1292) 83, Ministry of Education, Anambra State v. Asikpo (2014) 14 NWLR (1427) 351, Esekhaigbe v. FRSC (2015) 12 NWLR (1474) 520, Nsirim v. Amadi (2016) 5 NWLR (1504) 42.

In addition, Counsel is required to indicate clearly in the brief of argument, the grounds from which issues submitted to the appellate Court for determination in the appeal, are formulated. SPDCN Limited v. Edamkue (2009) 14 NWLR (1160) 1,Alao v. State (2011) LPELR-3700, Nigeria Ports Plc v. B.P.Pte Limited (2012) 18 NWLR (1333) 454.

In reaction to the Respondents brief, an Appellants Reply

brief was filed on 16th August, 2016.

A calm reading of the issues raised by the Appellant would show that their substance is whether the Appellant proved his claims as required by law to be entitled judgement in his favour as claimed.
I intend, on the authority of, inter alia, Sha v. Kwan (2000) 8 NWLR (670) 685 @ 700 and Chabasaya v. Anwasi (2010) 10 NWLR (1201) 163 @ 181, determine the appeal on the basis of this sole issue and in doing so, consider the relevant arguments canvassed by the learned Counsel for the parties thereon.

Appellants Submissions:
The submissions are to the effect that the Appellant by both pleadings and his evidence, proved that the Respondents flight in question and for which he was a passenger with a valid ticket purchased from the Respondent did not depart or take off from Lagos at the scheduled time on the date in question.

According to Counsel, the Appellant also established the special damages he suffered as a result of the delay caused or occasioned by the Respondents selfish and commercial reason thereby breaching the contract between it and the Appellant. He said the Respondent

failed to discharge the burden of proving the allegation that the delay was caused by adverse or bad weather as the only evidence given by its witness was hearsay and so inadmissible to prove the assertion. Furthermore, that the principle for assessment of damages for breach of contract is restitutio in integrum; i.e. to restore, as far as money can do so, the claimant to the position he would have been had the breach not occurred. It is also the submission of counsel that the Lower Court erred in failure to award damages to the Appellant and urges the Court to interfere with the decision since the condition set out in Momodu v. University of Benin (1997) 7 NWLR (512) 325 @ 320 have been satisfied. In addition, judicial authorities on burden of proof and hearsay evidence, including Imana v. Robinson (1979) 3-4 SC, I, Akinfosile v. Ijose (1960) SFSC, 192, Ajadi v. Ajibola (2004) 16 NWLR (898) 91, Buhari v. Obasanjo (2005) 2 NWLR (910) 241 @ 309 as well as Agbanelo v. UBN Limited (2000) 7 NWLR (666) 334 and Umoetuk v. UBN Limited (2002) 3 NWLR (755) 647 on the measure of damages in breach of contract, were cited in support of the submissions made.

is urged to allow the appeal, set aside the decision by the Lower Court and enter judgement for the Appellant as claimed.

Respondents Submissions:
It is submitted that the Respondent did not breach the contract with the Appellant which was subject to the provisions of Section 48(1), (2) and (3) of the Civil Aviation Act, 2006 and Articles of the 3rd Schedule thereto. Learned Counsel for the Respondent contends that time was not made of essence in the 3rd schedule because delay is a custom of the aviation business and practice and is usually subject of various issues such as adverse weather condition. According to him, the contract between the Appellant and the Respondent enjoined him to declare the need for him to meet an alleged scheduled flight to America via Air France which he admittedly failed to do at check-in-point and so constituted a breach of the contract.
Also, that Article 19 of the 3rd Schedule to the Aviation Act exempts the Respondent from liability for delay if it shows that it had taken all measures reasonably required to avoid the damage from the delay. Learned Counsel argues that the Respondent not only announced the

delay but also informed Air France counter about the delay for the Appellants flight to Port Harcourt.

In the alternative, it is submitted that the Respondents liability is limited by the provisions of Articles 22(1) of the 3rd Schedule to the Aviation Act even if it was in breach of the contract and not for the sums or amount of damages claimed by the Appellant. Learned Counsel also contends that the Appellant cannot claim refund of the costs of the flight which took him from Lagos to his destination in Port Harcourt and so completed the contract entered into between the parties for carriage by air of the Appellant on the date agreed to by them. He further says the claims for taxi and hotel accommodation are not sustainable since the contract between the parties was completed at arrival in Port Harcourt; the Appellants destination under the contract.Yusuf v. Adegoke (2007) 4 SC (Pt. 1) 126 @ 140, on burden of proof, Chitex Industry Limited v. Oceanic Bank International Nigeria Limited (2005) 7 SC (Pt. II) 50 @ 65-6 on damages arising from breach of contract,Arison Trad. & Engineering Company Limited (2009) 5-6 SC (Pt. 1) 131 @

156-7 on pleadings and proof of special damages, Tsokwa Motors Nigeria Limited v. UBA, Plc (2008) 1 SC (Pt. 1) 1 @ 19-20 on double compensation and Veepee Industry Limited v. Cocoa Cola Industry Limited (2008) 4-5 SC (Pt. 1) 116 @ 135 were referred to and relied on for the submissions made.
In conclusion the Court is urged to dismiss the appeal and affirm the decision by the Lower Court with costs.

In the Appellants Reply brief, it is submitted that the combined effect of the provision of Section 48(2) and (3), Articles 3, 19 and 22 of the 3rd Schedule to the Aviation Act makes it clear that time is of essence in carriage by air by proving for penalties and liabilities for delays suffered by passengers due to negligence of the carrier. It is maintained that the delay of the Appellants flight was for no justifiable reason and that he and members of his family suffered damages caused by the delay which made him to miss a connecting flight to America.

Resolution:
Now, the parties are one that there existed a valid contract of carriage by air between the Appellant; the passenger and the Respondent; the carrier, for the carriage or

transportation of the Appellant and members of his family from the Lagos to Port Harcourt on the 6th August, 2008 by way of the Respondents scheduled flight No. W3511. By the Air tickets purchased by the Appellant, which contains the terms and conditions of the contract between the parties and the subsequent Boarding Passes issued to him by officials of the Respondent at the check-in counter at the Lagos Airport, the Flight was scheduled to depart Lagos Airport or take off to the Appellants destination; Port Harcourt, at 7:30am. There is no dispute between the parties that the said Flight which was to carry or fly the Appellant and his family members from Lagos to Port Harcourt on the agreed date and time, did not depart or take off from the Lagos Airport at the precise time of 7:30am as scheduled and stipulated on both the Air tickets and Boarding Passes issued to the Appellant by officials of the Respondent in performance of the contract between them; to carry or fly the Appellant to his destination of Port Harcourt, as agreed. On the part of the Appellant, his case was that he fully performed his own part of the contract by presenting himself

to the Respondent to be carried or flown to his destination at the scheduled time indicated in the contract, but that the Respondent failed to perform its part of the contract by failure to depart Lagos at the scheduled time and so thereby breached the contract. Each of the Passenger Receipts for the purchase of the Air tickets issued by the Respondent to the Appellant and members of his family contains the following: –
Important notice: domestic carriage air under is subject to the rules and limitation resisting to carriers liability r??gime for domestic airline operations as provided for by Section 48(1)(2) & (3) of the 2006 Civil Aviation Act, 2006 for carriage wholly within Nigeria. All passengers should note that cash, valuables, documents, etc, Must be declared at check in. Arik Air shall not be liable for any loss of, or damage to check in items that are not declared including cash valuables jewelries, documents, etc.

This important notice given by the Respondent to the Appellant and all other passengers on its flights incorporates some of the terms and conditions of the contract between them, including that it is

subject to Section 48(1), (2) and (3) of the Aviation Act relating to its liability as the carrier in respect of the carriage of the Appellant from Lagos to Port Harcourt. The notice also required passengers to declare cash (money), valuable, documents, etc at the check-in point otherwise the Respondent shall not be liable for any loss or damage to such items, though checked-in, but not declared.

provisions of this Act, govern the rights and liabilities of carriers, passengers, consignors, consignees and other persons.
(2) The provisions contained in the Convention for the Unification of Certain Rules Relating to International Carriage by Air signed at Montreal on 28th May, 1999 as has been modified and set out in the Third Schedule of this Act and as amended from time to time, shall from commencement of this Act have force of law and apply to non-international carriage by air within Nigeria, irrespective of the materiality of the aircraft performing the carriage, and shall, subject to the provisions of this Act, govern the rights and liabilities of carriers, passengers, consignors, consignees and other persons.
(3) In any case of aircraft accident resulting in death or injury of passengers, the carrier shall make advance payments of at least US $30,000 (thirty thousand United States Dollars) within 30 (thirty) days days from the date of such accident, to the natural person or such natural persons who are entitled to claim compensation in order to meet the immediate economic needs of such persons and such advance payment shall not

constitute recognition of liability and may be off set against any amounts subsequently paid as damages by the carrier.
Article 19
The carrier is liable for damages occasioned by delay in the carriage by air of passengers, baggage or cargo. Never the less, the carrier shall not be liable for damage occasioned by delay if it proves that it and its servants and agents took all measure that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measure.
Article 22 of the Schedule III
In the case of damages caused by delay as specified in Article 19 in the carriage of persons, the liability of the carrier for each passenger is limited to 4,150 special drawing rights.

party who will fail in the claim if no evidence at all was given on either side, regard being heard to any presumption that may arise on the facts UBN, Plc. v. Sparkling Brew Limited (2000) 15 NWLR (689) 200, ED Tsokwa & Sons Company Limited v. UBN, Limited (1996) 10 NWLR (478) 281, Kala v. Potiskum (1998) 3 NWLR (540) 1, Audu v. Guta (2004) 4 NWLR (864) 463, Otaru & Sons Lmited v. Idris (1999) 6 NWLR (606) 330, Itauma v. Akpe-Ime(2000) 7 SC (Pt. II) 24. It is also the law that until the initial legal burden of proof was satisfactorily discharged on the balance of the evidence adduced; it does not shift but remains on the party who bears it by the operation of the law. In addition, the burden is to be and can only be satisfactorily discharged by admissible, credible and sufficient evidence which supports and establishes the fact/s upon which the claim/s is/are predicated. See Elias v. Omo-Bare (1982) 5 SC, 25, Kala v. Potiskum (supra), Daodu v. NNPC (1998) 2 NWLR (538) 355, Imam v. Sheriff (2005) 4 NWLR (914) 80, Agbi v. Ogbeh (2006) 11 NWLR (990) 65, George v. UBA (1972) 8-9 SC, 264 (cited in the Appellants brief). Buhari v. Obasanjo (supra),

Imana v. Robinson (supra).

However, the burden and issue of proof only arises when the fact/s alleged or asserted by a party upon which he predicated his claim/s against another party in a case, is/are disputed by the other and thereby joining issues and raising a dispute between the parties, that would call for resolution by the Court on evidence to be adduced before it.
Where facts asserted by one party in a case are expressly or by necessary implications or inference, admitted or conceded to by the other party, then there would be no dispute between the parties on such fact/s which will call for proof and the question of burden of such proof would not arise. The question and requirement of proof pre-supposes the existence a dispute which calls for some evidence in proof. That is the basis of the law that a fact admitted, requires no proof or further proof as provided for in Section 123 of the Evidence Act, 2011 (Section 75 of the 2004 Act). See also Akibu v. Oduntan(1992) 2 NWLR (222) 210 @ 226-7, Obimiami Brick & Stones Limited v. A.C.B. Limited (1992) 3 NWLR (229) 260 @ 301, Nwakanma v. Military Administrator, Abia State (1995) 4 NWLR (388) 185 @

187, Gabari v. Ilori (2002) 14 NWLR (786) 78 @ 100, Akpana v. Coniran (2004) ALL FWLR (228) 751 @ 787, Owosho v. Dada (1984) 7 SC, 149.

The relevant facts asserted by the Appellant upon which he predicated his claims against the Respondent before the Lower Court are contained in paragraphs 3-11 of the Statement of Claim dated 7th December, 2009 and as follows: –
3. On or about the 6th August, 2008 the plaintiff and his family members (OGUNMOYEKA NAOMI, RUFAI OLUWATOBI, RUFAI FAVOUR AND AJEPE IDOWU) were passenger on the defendant’s flight No: W3 511 from Lagos Murtala Muhammed to Port Harcourt Internaional on the 8th day of June, 2008 the said flight is scheduled to take off by 7.30am as also indicated on the flight ticket.
4. The said carriage of the plaintiff and his family was local carriage within the meaning of the convention for the unification of certain rules relating to international carriage by air signed at Montreal in 1999 and modified into the Nigeria Aviation 2006 Act.
5. On or about the 5th August, 2008 the plaintiff and on behalf of his family (4 in numbers) booked and purchased flight tickets of Arik Air (defendant) flight

No: W3 511 which flight was scheduled to depart the domestic wing of Murtala Muhammed Airport, Lagos to Port Harcourt on the 6th August, 2008 by 7.30 am. The plaintiff and his family members’ ticket were also confirmed. The plaintiff shall rely on cash deposit slips dated 5th August, 2008 and passenger receipt dated 6th August, 2008 issued by the defendant in proof thereof.
6. On the 6th August, 2008 the plaintiff and his family members mentioned in paragraph 3 above arrived at the defendant’s portals as early as 6.00 am and had their luggage screened and cleared accordingly and boarding pass issued. The plaintiff shall rely on the boarding passes issued in proof thereof.
7. The plaintiff boarded the defendant scheduled flight in readiness for their journey to Port Harcourt where they intended to board a France Air enroute united slate of America at 7.25am. On the fateful day there was no sign of departing the Lagos Airport at the fixed time (7.:30am) the plaintiff in his desperation to catch his flight abroad approached one of the hostess aboard the flight as to the cause for the delay. The hostess who seemed not to have answer to the inquiry

promptly informed one of the pilots of the Plaintiff’s plight. No reason was given for the delay but the hostess returned to calm the plaintiff’s nerves by assuring him that the defendant would contact Air France with a view of intimating the flight of the plaintiff.
8. The plaintiff avers that as at 7.25am on the fateful day the air craft was not full of passengers as there were only a few passengers on board. Between 7.30 am and 8.15 am more passengers had come inside the air craft and by 8.20 it was full to capacity. The flight that was scheduled to take off by 7.30am did not take off until 8.30 am only to arrive Port Harcourt around 9.30 am. It took another 20 minutes to disembark and by the time the plaintiff arrived at Air France counter the process of checking in passengers had closed and the plaintiff was turned back.
9. The plaintiff avers that the delay suffered, by flight No. W3511 Scheduled to take plaintiff from Lagos to Port Harcourt was caused by the defendant for its selfish and commercial reason and not by any event or accident beyond its control. As it was obvious that the flight was delayed to allow for more passengers to join

the flight.
10. The plaintiff further avers that there was no announcement either from the pilot or the control tower that the delay is been occasioned by weather or any directive from the traffic unit of the airport all through the time the plaintiff flight was delayed.
11. The plaintiff further avers that the inability of the defendant to provide the Air France Station manager in port harcourt with proper information denied the plaintiff and his family the opportunity to meet up with their scheduled flight to America

In reaction to these assertions by the Appellant the Respondent in paragraphs 2-8 of the Statement of Defence dated 12th September, 2010, averred that: –
2. The Defendant denies Paragraph 3, 4, 5 and 6 of the Statement of Claim of the Plaintiff and shall put the Plaintiff to the strictest proof thereof of the facts alleged therein at the trial of the suit.
3. The Defendant denies Paragraph 7 of the Statement of Claim and shall put the Plaintiff to the strictest proof of doubt of the said Paragraph as alleged. In further denial of Paragraph 7, the Defendant shall lead evidence that in accordance with standard

aviation practice and procedure, a schedule flight must obtain clearance to take off after air traffic and weather condition are ascertained sage for take off.
4. The Defendant, in line with the above, received an adverse weather report from the control tower on the Lagos Port Harcourt air space route and advised that Flight No. W3 511 scheduled for Lagos-Port Harcourt on 6th August, 2008 be delayed to enable the weather condition be conducive for a safe and comfortable flight.
5. The Defendant, the foremost and leading aviation company in Nigeria and committed to the safety and security of passengers and crew, obliged the above advice and shall lead evidence at the trial of the suit and the above information was announced to the Plaintiff and other passengers on board the flight as required by standard and statutory aviation practice and procedure.
6. The Defendant however state, in further proof of the above, that in view of the delay of Flight No. W3 511 on the 6th August, 20008 due to adverse weather condition and announced to all the passengers on the said flight including the Plaintiff, the Defendant contracted the Air France on behalf of

the Plaintiff about the delay, a fact which the Plaintiff admitted in his Solicitors letter dated 13th August 2008 but deliberately avoided stating same in his Statement of Claim.
7. The Defendant denies Paragraphs 8 and 9 of the Statement of Claim and state that the delay was caused by adverse weather condition that was unsuitable for a comfortable and safety flight and not because of any attempt to get more passengers into the aircraft. It is not commercially viable and unacceptable under standard aviation practice and procedure to deliberately delay a flight because it will certainly cause grave logistic consequence.
8. The Defendant denies Paragraphs 10 and 11 of the Statement of Claim and reiterates the averments in Paragraphs 5, 6 and 7 of the Statement of Defence of the Defendant.

As can easily be observed from the pleadings by the parties, the only primary fact which is in dispute between them on which issue was joined was on the reason or cause of the delay in the departure of the Flight in question from Lagos to its destination in Port Harcourt, at the scheduled time of 7:30am. All the other facts in the above avernments

are not in dispute, not in issue and so require no proof from the Appellant. Of particular material, among those facts about which there is no dispute between the parties in the pleadings above, is the fact that the flight in question was delayed from its scheduled time of 7:30am and did not depart Lagos until 8:30am on the journey to Port Harcourt as averred to in paragraph 8 of the Statement of Claim which specific time was not specifically, directly and frontally denied in the general denial of the paragraph in paragraph 7 of the Statement of Defence by the Respondent. It is therefore deemed accepted and conceded to by the Respondent on the authority of, inter alia, IMNL v. Nwachukwu (2000) 14 NWLR (688) 599, NNPC v. Sele (2004) 5 NWLR (866) 379, Osayande v. Etuk (2008) 1 NWLR (1068) 211, CBN v. Dinnah v. Dinnah (2010) 17 NWLR (1221) 125. Since the delay of the Flight was conceded to by the Respondent who asserted, positively in paragraph 4 of the Statement of Defence that:-
4. The Defendant, in line with the above, received an adverse weather report from the control tower on the Lagos Port Harcourt air space route and advised that Flight No.

W3 511 scheduled for Lagos-Port Harcourt on 6th August, 2008 be delayed to enable the weather condition be conducive for a safe and comfortable flight;
the burden of proving the reason or cause of the delay of the Flight, shifted to the Respondent to adduce the requisite evidence of the quality and quantity required by the law to, on the balance of probabilities or preponderance of evidence, is that it was due to the fact of adverse weather asserted by it in the pleadings.
The law is known that the burden, known as onus, of proof in civil proceedings or cases though usually and initially placed on the claimant who desires a Court of law to enter judgment in his favour on the basis of the existence of fact/s he positively asserted in his pleadings, is not static but may shift in the course of the proceedings to be determined by the state of the pleadings at given stages. This is the evidential burden of proof which is fixed by the pleadings and to be settled as an issue or question of law and remains where the pleadings fixed it throughout the proceeding.
Recently, the Supreme Court per Peter-Odili, JSC restated

the position in the case of Chemiron International Limited v. Stabilini Visinoni Limited (2018) ALLFWLR (965) 48 @ 70-1 as follows:-
— the law is trite as backed by Section 131 of the Evidence Act 2011 that he who asserts must prove. That provisions is supported by the fact that the burden of proof in civil cases in not static as it shifts from one party to another. Firstly, the burden of proving the existence or non-existence of fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may come up from the pleadings. Therefore, if the party adduces evidence which ought reasonably to satisfy the Court that the fact sought to be proved is established, the burden lies on the party, against whom the judgement would be given if no more evidence were adduced and so on successively until all the issues in the pleadings have been dealt with.
See also Egharevba v. Osagie (2009) 18 NWLR (1175) 299, Lewis & Peat (N.R.I) Limited v. Akhimien (1976) 6 SC 159, (1976) ALLNLR, 365, Elemo v. Omolade (1968) 11 MLR 359, Buba v. Bukar (2003) FWLR (183) 38.

However, before the burden of proof shifts, the claimant must discharge the initial legal burden of introducing evidence to establish the positive assertion/s of fact, the existence of which he predicated his claim upon and prayed the Court to enter judgement in his favour on the basis of such fact/s.
With the admission of the delay of the Flight by the Respondent as asserted by the Appellant, the initial burden of proving the delay on the Appellant did not arise since what is admitted requires no further proof. In addition to the admission of the delay of the Flight, the Respondent asserted that the delay was due to adverse weather instead of the selfish and commercial stated by the Appellant in paragraphs 8 and 9 of the Statement Claim. The Respondent therefore bore the burden of proving the assertion that adverse weather was the reason and cause of the delay. In its judgement, the Lower Court found to that effect when it stated, at the last paragraph of page 188 of the Record of Appeal, that: –
The burden is that of the Defendant to prove that he is entitled to rely on the exemption clause. Time of departure being an essence of the contract.

The exemption clause referred by the Lower Court in the above finding is the one provided in Article 19 of the 3rd Schedule to the Aviation Act, (supra) which imposes a burden of proof on the Respondent in cases of delayed Flights to prove that the Respondent took all reasonable measures required to avoid damages or that it was impossible for it to have taken such measures.

As seen earlier, the case of the Respondent in pleadings was that it received an adverse weather report from the control/tower on the Flight which the Respondents witness restated and confirmed in paragraphs 7 and 8 of his Statement on Oath which was adopted as evidence in support of the case and admitted in evidence as Exhibit DWA. Under cross examination, the witness said that he did not see the report and that the communications were verbal, brought to his attention by passenger service officers of the Respondent. It was also the Respondents case that the passengers on the Flight, including the Appellant were informed of the cause of the delay.

The question that arises is whether the evidence of the Respondents witness that the Flight

was delayed on ground of bad or adverse weather verbal report from the control tower, is admissible in law, first and then credible enough to establish the assertion of the reason for the delay.

Section 77 of the Evidence Act, 2004, applicable at the time the trial (Section 126 of the Evidence Act, 2011) provided that: –
126. Subject to the provisions of Part III oral evidence must, in all cases whatever, be direct
(a) if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw that fact;
(b) if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard that fact;
(c) if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived that fact by that sense or in that manner;
(d) if it refers to all opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion those grounds:
Provided that the opinions of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are

held, may be proved by the production of such treatise if the author is dead or cannot be found, or has become incapable of giving evidence or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable.
Simply put, these provisions required that oral evidence, shall, in all cases whatever, be direct on facts which could be seen, heard, perceived or on opinion, from the person who saw, heard, perceived or held the opinion, as the case be. See Dana Impex Ltd. v Aderotoye (2006) ALL FWLR (308) 1338.
Oral evidence by a person, who did not see, hear, perceive or hold an opinion about or on a fact given in proceedings of a case, would not be direct and if it was given for the purpose of proving the truth of the facts, is hearsay evidence which is inadmissible in evidence by virtue of Section 77 of the 2004 Act (supra).

In the present appeal, the Respondents witness who gave oral evidence on the reason or cause of the delay of the flight, was a legal officer in the employment of the Respondent who admittedly was not at the Airport, did not see the alleged report of adverse weather condition from the

control tower at the material time and was only informed of the report by other officers of the Respondent. He was therefore not a person and witness who saw or heard the report from the control tower of the Airport received by the Flight Crew or other officials or officers in charge of the Flight on that day, but one who claimed, under cross examination, that the incident of that day was brought to my attention by the PSA. Yet, the witness sought to strenuously, by his evidence, to prove or confirm the truth of the fact, the fact pleaded by the Respondent that the adverse weather condition based on the report from the control tower, was the reason or cause of the delay in the Flight.

In its judgement, the Lower Court had stated that: (at page 189 of the Record Appeal)
Evidence from Regulatory agencies or institution which would have assisted the Court in coming to decisions on the issues canvassed were missing.

Like I have shown earlier, with the admission of the delay of the Flight by the Respondent, the burden of proof of the reason or cause of the delay was on it and no longer on the Appellant whose scheduled

flight was delayed by the Respondent. The Lower Court was in error to have placed the burden on the Appellant when it stated that: –
It is the plaintiffs business therefore at this stage to rebut same and show that there was no bad weather.
It may be recalled that the law is that a fact which has been admitted requires no further proof and so the Respondent and not the Appellant, bore the burden of showing and proving the reason or cause of the admitted delay of the Flight asserted by it in order to avoid liability for the delay as provided for in Article 19 of the Aviation Act. In effect, what the Lower Court did was to misplace the burden of proof of the reason or cause of the delay of the Flight, on the Appellant when there was no legally admissible evidence placed before it by the Respondent to establish that the delay was in fact, due to adverse weather condition based on the alleged report from the control tower at the Airport. Until that burden was satisfactorily discharged by the Respondent with admissible, credible and sufficient evidence, the Appellant would have no business to show that there was

no bad weather.
The error by the Lower Court in misplacing the burden of proof on the Appellant, of the reason or cause of the delay, obviously affected its view of the evidence before it and resulted in the wrong conclusion that In the circumstance, I accept the reasons given by the Defendant for the delay in taking off at 7.30 am as not being unreasonable given the adverse weather condition, at page 190 of the Record of Appeal.
For a Court to misplace the burden of proof on a party in a case constitutes a misapprehension or error which is radical, grave and may be fatal to its view, appreciation, evaluation or assessment of the material evidence placed before it and eventually render its conclusion or decision in a case, erroneous and wrong in law, see Onobruchere v. Esegine (1986) 2 SC, 385; Sanusi v. Ameyogun(1992) 4 SCNJ, 177; R. v. Oshunbiyi (1961) ALLNLR, 453.

From the cases presented by the parties before the Lower Court, there was admissible, credible and sufficient evidence to establish, on the balance of probabilities, that the Appellants scheduled Flight from Lagos to Port-Harcourt, on 6th August, 2008

operated by the Respondent, was delayed from 7.30 am to 8.30 am when it departed the Lagos Airport on its way to Port Harcourt, contrary to and in breach of the contract between the Appellant and Respondent, that the said flight was to depart Lagos to Port Harcourt by 7.30 am. The delay was in breach of the contract between the parties for which the Appellant claimed to have suffered damages. There was no admissible and credible evidence to establish that the delay was due to or caused by adverse weather condition at the material time.

Ordinarily, at common law, once there is a breach of a contract entered into by parties, the party in breach would be liable in damages resulting from the breach to the other party to the contract against whom the breach was committed. Obimiami Brick & Stone Nig. Ltd. v. ACB Ltd (supra). A breach of contract simply means that the party in breach has acted contrary to the terms of the contract in the performance of the contract or acted negligently in the performance in such a way that it was not in accordance with the specific terms agreed to by the parties or even failed or refused to perform his own part of the

contract as agreed to by the parties. See Pan Publishers Nig. Ltd v. First Bank of Nig. Ltd (2000) 1 SC, 71; Best Nig. Ltd v. Blackwood Hodge Nig. Ltd (2011) 1-2 MJSC, 55. In awarding damages, in an action for breach of a contract, the principle of law applicable is restitutio in intergnum, that is, to restore the innocent party/claimant, in so far as money can do so, to the position in which he would have been if the breach had not occurred or happened. See Okongwu v. NNPC (1989) 4 NWLR (115) 296; Oshin & Oshin Ltd. v. Livestock Feeds Ltd (1997) 2 NWLR (486) 162; Udeagu v. Benue Cement Co. Plc (2006) 2 NWLR (965) 600; Cameroon Airlines v. Otutuizu (2011) 2-3 MJSC (Pt. II) 56, (2011) 4 NWLR (1238) 512; Best Nig. Ltd. v. Blackwood Hodge Nig. Ltd (supra).
However, in the Appellants case, the provisions of Article 19 of the 3rd Schedule to the Aviation, Act exempts the Respondent from liability for damages suffered from or occasioned by delay in the flight from Lagos to Port Harcourt which constituted the breach of the contract between the parties if it satisfied the condition for the application of the exemption. It is therefore the

statutory exemption which will supercede the general principle of law of contract on damages for breach and would apply to the Respondents case. Ugwu v. PDP (2013) LPELR-21356; Ibidapo v. Lufthansa Airlines (1997) 4 NWLR (498) 124.
As seen before now, Article 19 of the 3rd Schedule to the Aviation Act, renders the Respondent liable for damages occasioned by delay in the carriage by air, of inter alia, passengers, subject to proof by it that it took all measures that could reasonably be required to avoid the damage or that it was beyond its control to take such measures.
The damage claimed by the Appellant was his inability to connect an international flight from Port Harcourt on the said date of 6th August, 2008 which resulted in expenses for the Appellants accommodation and transportation in Port Harcourt, among others.
In the case presented by the Appellant, he did not say or show that at the time he bought the Air-tickets for the journey to Port Harcourt from the Respondent or at the check-in counter at the Lagos Airport, he notified the officials or officers of the Respondent in charge of the Flight that he had an

International flight to connect and at what time of the morning at his destination in Port Harcourt on arrival of the Respondents flight from Lagos. His case was that it was after he boarded the flight and at about 7.25 am that he approached one of members of the Cabin Crew to find out the reason for the delay and let her know that he had a scheduled International flight to connect at Port Harcourt that morning. That after consulting one of the Pilots, the Cabin Crew member informed him that his International flight in Port Harcourt was to be informed or intimated of the flight delay in Lagos, which he confirmed on arrival at Port Harcourt. By the chronicle of the events of the delay in the Respondents flight and the steps or action taken by it when it became aware of the Appellants need to connect the International Flight in Port Harcourt that morning, although it was unable to discharge the burden of proving that the delay was due or caused by adverse weather condition as asserted, the credible evidence of the action or step taken by it of notifying the station Manager of the International Flight the Appellant was to connect in Port

Harcourt when it became aware that the Appellant was to be on the said Flight, shows and proves that Respondent took the measure that was reasonably required in the circumstances, to avoid the alleged damage of the Appellants missing the Flight in the Port Harcourt. It was not part of the terms and conditions of the contract between the parties that the Respondent had the duty to ensure that the Appellant did not miss the International Flight in Port Harcourt, but the contract was to simply fly the Appellant and the members of his family to Port Harcourt as scheduled and indicated on the Air tickets and the Boarding Passes issued to them. Although there was delay, the Appellant and members of his family were flown to Port Harcourt slightly later than the scheduled time and so the contract between them fully performed; the breach notwithstanding.
In the above circumstances, even though the Appellant may have suffered damages from or due to the delay of the Flight in question, the Respondent has proved that it had taken the measure reasonably required to avoid the damage to the Appellant and so the provisions of Article 19 of the 3rd Schedule to the Civil Aviation Act, 2006

avail to exempt it from liability for such damage.
The above apart, the Appellant should really blame himself for missing the International Flight from Port Harcourt on the day in question because it was his duty to ensure that he presented himself for the Flight in good and sufficient time for check-in and other Airport formalities just like he did for the Respondents Flight from Lagos to Port Harcourt rather than take the risk of last minutes flying to Port Harcourt on the morning the International Flight was scheduled to depart. He gambled with the time, took the risk and lost out and so should keep his peace, having learnt a lesson that would be useful in future.
In the final result, although the Appellants Flight was delayed by the Respondent, the Respondent has proved that it took measures reasonably required to avoid the damage occasioned to the Appellant resulting from the delay and so exempted from liability for the damage by dint of the provisions of Article 19 of the 3rd Schedule to the Civil Aviation Act, 2006.

The appeal in the circumstances lacks merit and is dismissed accordingly.<br< p=””>

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Consequently, the decision of the Lower Court is affirmed.
Parties to bear the costs of prosecuting the appeal.

BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I had the privilege of reading in draft the lead Judgment of my learned brother MOHAMMED LAWAL GARBA, J.C.A., just delivered with which I agree and adopt as mine. I have nothing more to add.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I was privileged to read the draft of the judgment delivered by my learned brother, MOHAMMED LAWAL GARBA, JCA in this appeal. He has extensively considered and exhaustively pronounced on the relevant issue(s) germane to the resolution of this appeal.

I too join my learned brother in dismissing this appeal because it lacks. merit. The judgment of the Federal High Court delivered on the 23rd of May, 2012 is hereby affirmed.
I also abide by all consequential orders in the lead judgment.

Appearances:

A. SalawuFor Appellant(s)

For Respondent(s)